HUMANITARIAN INTERVENTION AND INTERNATIONAL LAW:
THE MORAL IMPORTANCE OF AN INTERVENER’S LEGAL STATUS
James Pattison*
ABSTRACT: Although states have recently agreed that there is a
universal responsibility to undertake humanitarian intervention to
protect populations from egregious violations of human rights, it is
unclear who exactly in the international community should intervene.
One option, favoured by many, is that intervention should be
undertaken by those interveners whose action would be legal
according to current international law. This article considers this
option by assessing the moral importance of an intervener’s legal
status. I begin by suggesting that according to the current
international law on humanitarian intervention, UN Security Council
authorisation is required for an intervener’s action to be legal. Then,
in the main part of the article, I critically examine four reasons for
treating an intervener’s legal status as morally significant.
Specifically, I argue that the importance of an intervener having UN
Security Council authorisation, and therefore being legal, is
significantly less than commonly assumed.
KEY WORDS: humanitarian intervention, international law, United
Nations Security Council, the responsibility to protect.
TOTAL WORD COUNT: 9,337
CITATION: James Pattison (2007) “Humanitarian Intervention and International Law:
The Moral Significance of an Intervener’s Legal Status”, Critical Review of International
Social and Political Philosophy, 10 (3), pp. 301–19.
As the notion of universal human rights has grown in standing in the international
community, the concept of sovereignty has been gradually evolving to one of sovereignty
*
Contact details:
Affiliation: Newcastle University.
Address for correspondence: 23 Hyde Terrace, Newcastle, NE3 1AT.
Tel: 0191 284 1590
E-mail address: james.pattison@ncl.ac.uk
1
as responsibility, the responsibility to uphold one’s citizens’ basic human rights. A key
development in this context has been the International Commission on Intervention and
State Sovereignty’s (ICISS) report in 2001, The Responsibility to Protect. Commissioned
by the Canadian government in response to a call from the then UN Secretary-General,
Kofi Annan, and led by former Australian foreign affairs minister, Gareth Evans, The
Responsibility to Protect argues that if a state does not protect the human rights of its
citizens, sovereignty is temporarily suspended, and there is an international responsibility
to respond. Accordingly, there is a universal responsibility to undertake humanitarian
intervention to protect populations from genocide, war crimes, ethnic cleansing, and
crimes against humanity. At the UN World Summit in 2005, the heads of the member
states accepted that the international community has a universal responsibility to protect
should national authorities be unwilling or unable to protect their populations (UN 2005:
30).1
Yet it remains unclear who exactly in the international community should
undertake humanitarian intervention. Should it be the UN, NATO, a regional organisation
(such as the African Union), a state or group of states (perhaps with the authorisation of
the UN Security Council), or someone else? It is vital that we make this decision if we
are to discharge effectively the responsibility to protect. Otherwise, as Alex Bellamy
asserts, “there is a real danger that appeals to a responsibility to protect will evaporate
amid disputes about where that responsibility lies” (2005: 33).
The question of who should execute the responsibility to protect is ultimately a
moral question. We need to look to those interveners whose intervention will be morally
justifiable and, in particular, those interveners who possess morally relevant qualities. But
2
what are these qualities? One quality frequently claimed to be morally significant is an
intervener’s legal status according to the current international law on humanitarian
intervention. On this approach, to decide who should execute the responsibility to protect,
we should look to the interveners that can legally undertake intervention to protect human
rights. Indeed, this is the preferred solution of ICISS. Having suggested that intervention
authorised by the UN Security Council is legal, the authors of The Responsibility to
Protect claim that “[t]here is no better or more appropriate body than the United Nations
Security Council to authorize military intervention for human protection purposes”
(ICISS 2001a: XII).
Only two years previous to the publication of this report, however, NATO’s
intervention in Kosovo was largely successful at preventing rights violations on the scale
of the Bosnian war, despite lacking Security Council authorisation. This led the
Independent International Commission on Kosovo to conclude that NATO’s action was
“legitimate, but not legal, given existing international law” (2000: 289). Consequently,
NATO’s intervention in Kosovo raises doubts over the significance that ICISS gives to
an intervener’s legal status: if humanitarian action can be successful at halting egregious
violations of human rights without having the proper legal basis, why should we care
whether an intervener has the legal right to intervene? More recently, there has been a
lack of effective action in response to the human rights violations in Darfur, the
Democratic Republic of Congo, Northern Uganda, and elsewhere. 2 If an agent were
willing to intervene in one of these states whose intervention would be illegal but
effective, should we support it? Or should we maintain that only those interveners whose
3
intervention would be legal should take on the responsibility to protect? Kofi Annan
sums up the dilemma we face:
To those for whom the greatest threat to the future of international order is the
use of force in the absence of a Security Council mandate, one might ask – not
in the context of Kosovo – but in the context of Rwanda: If, in those dark days
and hours leading up to the genocide, a coalition of States had been prepared to
act in defence of the Tutsi population, but did not receive prompt Council
authorization, should such a coalition have stood aside and allowed the horror to
unfold?
To those for whom the Kosovo action heralded a new era when States
and groups of States can take military action outside the established mechanisms
for enforcing international law, one might ask: Is there not a danger of such
interventions undermining the imperfect, yet resilient, security system created
after the Second World War, and of setting dangerous precedents for future
interventions without a clear criterion to decide who might invoke these
precedents, and in what circumstances? (1999: 1).
The primary aim of this article is to assess this dilemma. More specifically, I answer the
following question: when deciding who should execute the responsibility to protect, how
important is it that those undertaking humanitarian intervention do so in accordance with
current international law?
4
On one approach, an intervener’s having proper legal authorisation is a necessary
condition of, and vital factor in, its moral justifiability. On this position, which was taken
by states at the 2005 UN World Summit, we should always look to an intervener’s legal
status when considering who should execute the responsibility to protect. It follows that
illegal intervention is always unjustifiable.3 On another position, which I defend in this
article, an intervener’s legal status according to current international law plays little or no
role in its moral justifiability. It follows that an intervener’s legal status is a poor basis on
which to assess who should execute the responsibility to protect. It follows that we need
to look instead to other factors to make this decision.
Note that throughout the article my concern is with the significance that we
should give to current international law in determining where we should place the
responsibility to intervene, not international law per se. Thus, I do not conduct a broad
inquiry into the relationship between law and morality in international affairs. Although
some of the issues that I raise can be applied to international law more generally, I focus
on the specific moral and political issue of the moral significance of the current
international law on humanitarian intervention when deciding who should execute the
responsibility to protect.4
The article proceeds as follows. I start by briefly exploring the current status of
the international law on humanitarian intervention. This analysis is necessary because we
need to know what the law on humanitarian intervention is before we can assess its
worth. Then, in the main part of the article, I critically examine four prevailing reasons
for treating an intervener’s legal status according to current international law as morally
significant (and therefore an appropriate basis on which to decide who should intervene).
5
In particular, I consider the arguments that an intervener’s legal status is morally
significant because: (I) legal interveners derive their authority from morally valuable
procedures; (II) illegal humanitarian intervention is itself abusive; (III) illegal
humanitarian intervention leads to abusive intervention; and (IV) illegal humanitarian
intervention undermines international order.
The Legal Picture
There are a number of different readings of the current law on humanitarian intervention.
I shall focus on two of the most informative: international legal positivism and Fernando
Tesón’s human rights-based approach.
An International Legal Positivist Reading of International Law
International legal positivism is a subspecies of legal positivism. It holds the ‘separability
thesis’, asserting that there is a conceptual distinction between what international law is
and what morality demands. As such, lex lata – the law as it is – is not the same as lex
ferenda – the law as it ought to be. Its account of legal validity, and therefore of what
international law is, is highly voluntaristic. International law is said to emanate
exclusively “from the free will of sovereign independent states. There is no law except
what is ‘posited’ by sovereign powers” (Wight 1991: 36). There are two ways in which
sovereign states ‘posit their will’, i.e., consent to international law: the first is by agreeing
6
to a treaty; the second is by engaging in a practice which becomes a customary rule of
international law over time as it is repeated (and which meets the requirements of opinio
juris).5 In other words, for international legal positivism the two sources of international
law are treaty and custom and, as such, moral considerations are not necessary for legal
validity.
International legal positivists generally take the following position on the legality
of humanitarian intervention. Article 2(4) of the UN Charter provides a general
prohibition on the use of force. This states:
“All Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.”
There are only two legal exceptions: unilateral or collective self-defence and Security
Council enforcement action under Chapter VII of the UN Charter. 6 Most international
legal positivists reject the existence of a third possible exception to Article 2(4), which
would hold that unauthorised humanitarian intervention is legal because there is a
customary international law for this practice. Their argument, in brief, is that there is
insufficient state practice to establish such a customary international law (e.g., Byers &
Chesterman 2003; DUPI 1999). It follows that humanitarian intervention – which violates
Article 2(4) – can be legal only when undertaken for self-defence or when the Security
Council authorises it.7 We can dismiss the former because humanitarian intervention will
be very rarely, if ever, legal on the basis of self-defence, so defined in international law.8
7
Interveners therefore need to have Security Council-authorisation in order to be legal.
Hence, broadly speaking, on an international legal positivist reading of current
international law, a humanitarian intervener is acting legally if its intervention is
authorised by the UN Security Council and illegally if its intervention lacks such
authorisation.9
A Naturalist Reading of International Law
Some deem this understanding of the law on humanitarian intervention to be too
restrictive. A prominent example is Fernando Tesón (1997), who, from the perspective of
natural law, argues that those undertaking humanitarian intervention do not need to have
express UN Security Council authorisation for their action to be legal.
Like all naturalist accounts, Tesón rejects the separation of legal validity and
morality. His account, which is based on Ronald Dworkin’s interpretive natural law
theory, asserts that what the current status of the law is on a certain issue, such as
humanitarian intervention, also depends, in part, on what the law ought to be. In other
words, lex ferenda affects lex lata. Tesón’s naturalism includes a large role for positive
law, but in contrast to legal positivists, he argues that neutral analysis of the two
traditional positive sources of international law – custom and treaty – is impossible, and
we should therefore interpret these sources according to the best moral theory of the
purposes of international law. This theory, according to Tesón (1997), is a human rightsbased approach that sees individuals as the subjects of international law and the role of
international law as the protection of human rights.
8
On the basis of this human rights-based approach, Tesón argues that those
undertaking humanitarian intervention act legally, even if they lack express Security
Council authorisation, providing that they meet certain normative criteria. 10 He reaches
this conclusion principally by claiming that the selection and reading of possible
precedents, which could establish or deny the existence of a customary law permitting
humanitarian intervention, is inevitably affected by the interpreter’s views on the role of
international law. Given that international practice tends to be chaotic and contradictory,
and that any attempt to find normative patterns of behaviour is result-orientated (Tesón et
al. 2003: 941), he claims that we need to appeal to moral-political values to interpret
potential precedents (Tesón 1997: 166).
Using a human rights-based interpretation of state practice, Tesón argues that
there are nine precedents for humanitarian intervention: India’s 1971 intervention in East
Pakistan; Tanzania’s 1979 intervention in Uganda; France’s 1979 intervention in the
Central African Republic; the U.S.’s 1983 intervention in Grenada; the U.S., the U.K.,
and France’s 1991 intervention in northern Iraq to protect the Kurds; the U.S.-led 199293 UN intervention in Somalia; the U.S.-led 1994 action in Haiti; the French-led 1994
intervention in Rwanda; and NATO’s 1994 intervention in Bosnia (Tesón 1997). On the
basis of these precedents, Tesón asserts that there is a legal right to intervene in
customary international law for both authorised and unauthorised interveners.
It is hard to see how he can sustain this conclusion, however. The central problem
is this: whilst intervention authorised by the UN Security Council is legal, too few of the
unauthorised humanitarian interventions cited by Tesón have met the requirements of
opinio juris for it to be plausibly claimed that unauthorised humanitarian intervention is
9
legal according to customary international law. According to the International Court of
Justice, the opinio juris condition of customary international law requires:
Either the States taking such action or other States in a position to react to it, must
have behaved so that their conduct is ‘evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it’ (in Chesterman
2003: 58 n.26).
Most of the unauthorised interveners that Tesón cites did not behave in a way that
evidences a belief that humanitarian intervention is legally obligatory. In particular, they
did not claim that their action was legal according to the international law on
humanitarian intervention (they instead cited other legal justifications, such as selfdefence), nor was world opinion inclined to regard these interveners’ actions as legal
(Chesterman 2003: 49-50). For instance, neither Tanzania in Uganda, India in East
Pakistan (at least primarily), nor France in Central Africa invoked a humanitarian
justification for their action, nor was there support for the legality of humanitarian
intervention in the international community at the time.
That said, it could be reasonably claimed that some unauthorised humanitarian
interventions have met the requirements of opinio juris. For example: the 1992
intervention in northern Iraq by the U.K., the U.S., and France was justified in conformity
with Security Council resolution 688, but also asserted a right of humanitarian
intervention (albeit a limited one which required a supporting Security Council
resolution) (Wheeler 2000: 169); the Economic Community of West African States
10
(ECOWAS) declared a right of humanitarian intervention in its interventions in Liberia
(1990) and Sierra Leone (1997); and NATO’s legal justification for intervening in
Kosovo rested on some assertion of a right of humanitarian intervention or humanitarian
‘necessity’ (Stromseth 2003: 251).
It is doubtful, however, whether any customary right of unauthorised
humanitarian intervention can be reasonably interpreted to exist solely on the basis of
these few interventions. Customary international law is formed by states engaging in a
repetitive and ongoing practice; as the practice is repeated over time, it becomes law. The
problem is that there have been too few instances of unauthorised humanitarian
intervention that meet the requirements of opinio juris for unauthorised humanitarian
intervention to be said to be a repetitive and ongoing practice.
Hence, it seems clear then that legal positivists are right to conclude that,
according to current international law, legal interveners are those with express UN
Security Council authorisation and illegal interveners are those without it.
The Moral Significance of an Intervener’s Legality
Having seen what the current international law on humanitarian intervention is, how
important is it that those undertaking humanitarian intervention do so legally? Or, to put
it another way, is it morally significant that interveners have UN Security Council
authorisation?
11
(I) Legal Proceduralism
It should be noted here that although I have defended a legal positivist understanding, this
is not to presume the moral justifiability of the current international law on humanitarian
intervention. To that extent, it is important to distinguish between international legal
positivism and what I shall call ‘legal proceduralism’. International legal positivism
makes no direct normative claims itself; it is a theory of what constitutes international
law, that is, of legal validity. It holds that the two sources of law are treaty and custom
(rather than moral considerations), but does not make any normative claim about the
moral significance of these procedures. Legal proceduralism, by contrast, is normative. It
asserts that the procedures by which international law is formed are morally valuable and,
consequently, international law has moral significance (because it is formed by these
procedures).
Many legal positivists also happen to assert legal proceduralism, but the two need
not go hand-in-hand. On the contrary, a legal positivist can coherently assert that an
intervener needs to have UN Security Council authorisation in order to possess the legal
authority to undertake humanitarian intervention, but, at the same time, hold that whether
an intervener has UN Security Council authorisation – and therefore has the legal
authority to undertake humanitarian intervention – is of little moral significance. Indeed,
in this article, I adopt an international legal positivist reading of the current international
law on humanitarian intervention, but reject the claim that this law is morally significant.
There are, in fact, significant problems with legal proceduralism in the context of
humanitarian intervention. This approach asserts that an intervener’s legal status is
12
morally important because of the moral value of the processes by which this law is
formed, that is, by, firstly, state consent to international law and, secondly, UN Security
Council authorisation.
It is doubtful, firstly, whether state consent to international law provides reason
for holding that the legality of an intervener matters. There is no clear analogy between
individual consent and state consent, so it does not follow that because individual consent
matters that state consent matters too.11 Nor can it be plausibly claimed that state consent
is somehow representative of individual consent, for many states are undemocratic and
even some apparently democratic states are often unrepresentative of their citizens on
specific issues, including foreign policy issues (Buchanan 2003: 152). David Chandler
(2002) claims that state consent is necessary for the formal equality of states, but this
merely shifts the problem from justifying state consent to justifying the formal equality of
states, and it is unclear why the formal equality of states has moral value.
Second, it is doubtful whether the functioning of the UN Security Council is
morally valuable and therefore able to legitimise the interveners it authorises. The most
plausible argument for this position asserts: (1) the Council’s functioning includes
powerful states in the international legal system and subjects them to a formalised
decision-making procedure, while still being based on a sense of universal representation
and the rule of law; and (2) interveners that are authorised by the UN Security Council
are desirable because they gain their authority to intervene from this carefully-balanced
and morally-valuable process. 12 But this argument fails. Given the arbitrariness of the
veto, the Council’s unrepresentative structure, and the lack of both coherence and
consistency in its decisions, the functioning of the Security Council is clearly not
13
carefully balanced and morally valuable. It is too much of a compromise with power and
has too little concern for human rights concerns for its functioning to legitimise the
interveners that it authorises.
Rather than adopting this problematic legal proceduralist position, I adopt an
approach which holds that the likely consequences of an intervener’s actions are central
to its justifiability, and which also holds that other factors, such as whether the intervener
uses suitable means to undertake the intervention, and whether it is welcomed by the
victims of the humanitarian crisis, are morally significant.13 The question, which I am
concerned with in this article, is whether an intervener’s legal status is also a morally
significant factor. Is it, for instance, a necessary and vital factor in an intervener’s moral
justifiability, and therefore central to determining who should execute the responsibility
to protect?
I have already suggested that this assertion cannot be plausibly justified by
invoking legal proceduralism. I will turn next to consider whether this can be successfully
demonstrated by arguments that claim that there are links between abusiveness and illegal
humanitarian intervention. Unlike the procedural arguments, which are concerned with
whether the intervener’s legality derives from a morally valuable international legal
process, these arguments are concerned with the moral value of the content of
international law, and in particular, with its effects when obeyed and disobeyed, that is,
with the consequences of interveners being legal or illegal.
(II) Abusive Humanitarian Intervention – The Trojan Horse Objection
14
One of the most common arguments given in favour of the importance of an intervener’s
legal status is that illegal humanitarian intervention involves abuse. This argument is best
seen as involving two quite distinct objections to illegal humanitarian intervention. The
first objection is that illegal humanitarian intervention is itself abusive. This is what I
shall call the ‘Trojan Horse’ argument: states use humanitarian intervention as a cover to
engage in abusive humanitarian intervention. Consequently, we should use an
intervener’s legal status to decide who should carry out the responsibility to protect
because this avoids abusive humanitarian intervention.
This Trojan Horse Objection, although frequently made, is either (1) incoherent or
(2) unconvincing. To see this, it is important to distinguish first between an intervener’s
intention and its motive.14 If an intervener has a humanitarian intention, it has the purpose
of preventing, reducing, or halting violations of human rights. The intervener’s
underlying reason, however, for having this humanitarian intention does not have to be
humanitarian as well. It could, for instance, be motivated by self-interest. State A might
intervene to stop a humanitarian crisis in State B, but its reason for doing so is because it
desires to decrease the number of refugees entering its borders. But if the intervener is to
have a humanitarian motive, not only must its intention be humanitarian, but also its
reason for having that intention. Hence, its motive is the underlying reason for taking the
humanitarian action. In the example above, if State A is to have a humanitarian motive,
the reason for it wanting to intervene in State B must be humanitarian.15
We tend to think that, to be engaged in ‘humanitarian intervention’, an intervener
must have a humanitarian intention (whatever its underlying motives). The humanitarian
objective cannot be incidental to another, nonhumanitarian objective, such as protecting
15
national security. 16 Indeed, more broadly, intentions are key to classifying actions. As
Tesón asserts, the concept of intention “allows us to characterize the act, to say that the
act belongs to a certain class of acts, such as acts of rescue” (2005: 5). That is to say, a
chief way to determine what a particular agent is doing – its action – is to look at its
intentions. So, an intervener must have a humanitarian intention to be undertaking
‘humanitarian intervention’.17
Now, the Trojan Horse Objection’s accusation of ‘abusive humanitarian
intervention’ is ambiguous. It is sometimes meant to imply (1) imperialistic or neocolonial intervention, where the intervener’s primary intention is to gain territorial,
economic, or strategic advantage (Chandler 2002; Krisch 2002). Such action is clearly
not humanitarian – its intention is not to halt violations of human rights – and, as such,
should not be regarded as an instance of ‘humanitarian intervention’ (Tesón 1997: 111).
Accordingly, it is incoherent to claim that illegal humanitarian intervention is ‘abusive’ in
the sense of being imperialistic. Although illegal nonhumanitarian intervention can be
abusive in this sense, illegal humanitarian intervention cannot.
Another version of the Trojan Horse Objection uses ‘abusive’ to mean (2)
motivated by self-interest: illegal humanitarian intervention is abusive because those
undertaking such interventions do so with self-interested motivations. Ian Brownlie, for
instance, asserts that when humanitarian justifications have been made by interveners,
“circumstances frequently indicated the presence of selfish motives” (1963: 339). This
contrasts with legal humanitarian intervention, which, the argument runs, is much less
likely to be self-interested given the processes of the UN Security Council. So, this
second version of the Trojan Horse Objection claims that an illegal intervener’s motives
16
undermine its legitimacy; self-interested reasons are inappropriate motives to conduct
war in defence of human rights.
There are significant problems with this objection’s reliance on the concept of an
intervener’s motivation. The first problem is ontological: whose motives should count? It
is misleading to anthropomorphise the intervener, claiming that it has this or that
particular motivation, for interveners are simply a collection of individuals. And the
motivations of the individuals who collectively constitute the intervener cannot be easily
collated so as to say that the intervener has a certain motive. As Shashi Tharoor and Sam
Daws (2001: 24) suggest, every intervention arises from a complex and changing context
of political aims, views, and positions in which motives are hard to isolate and
interrogate.
The second problem is epistemological: there are grave difficulties in ascertaining
an intervener’s motives. Assume, for example, that we take an intervener’s motives to be
determined by its ruler’s motives. Establishing what motivated a ruler to decide to
intervene is notoriously difficult. Even if we overlook the banal point that we can never
know what someone else is thinking, attempting to discover a ruler’s motives for
intervening is decidedly tricky. For instance, did Bill Clinton want to intervene in Kosovo
because he really cared about saving the lives of the Kosovan Albanians? Or was he more
concerned with reducing the domestic political heat after the Monica Lewinsky affair? It
is extremely difficult to know and, as a result, making the justifiability of an intervention
hang on such matters is problematic. The same applies, but on a much larger scale, if we
were to take an intervener’s motives as the motives of all those who collectively form the
intervener; we would face the challenge of determining all these individuals’ motives.
17
Moreover, even if we were to overlook these conceptual problems and assume
that we can easily establish an intervener’s motives, whether an intervener has a
humanitarian motive is of little moral significance. In other words, the normative claim of
the Trojan Horse Objection – that an intervener motivated by self-interest is morally
objectionable – is unpersuasive. First, it is doubtful whether an intervener having a
humanitarian motive has intrinsic value. The argument for humanitarian motives having
intrinsic value revolves around the Kantian notion that people should do the right things
for the right reasons. If, for instance, Jack rescues Jill from drowning, it should be
because he wanted to save her life, not because Jack thought that Jill would give him a
big financial reward. To be sure, there does seem to be something intuitively attractive
about this Kantian notion. But, in the context of humanitarian intervention, the intrinsic
importance of a humanitarian motive seems small. It is certainly not a necessary
condition of legitimate humanitarian intervention. As Tesón argues:
It puts too much stock in the agent’s subjective state and, in doing so, disallows
many actions that are objectively justified under any plausible moral theory. Take
this obvious case: a political leader decides to stop genocide in a neighboring
country (or, even less controversially, to defend that country against aggression)
because he thinks that is the best way to win reelection. If we require right motive
and not merely right intent, that war would be unjust (2005: 9).
Could an intervener’s having a humanitarian motive nevertheless be a significant, if not
necessary, condition of an intervener’s legitimacy? Perhaps not, for humanitarian
18
intervention is a response to grievous suffering or loss of life, typically on a massive
scale. In this context, the intrinsic importance of an intervener’s having a humanitarian
motive pales into insignificance, especially when contrasted with other values that are
important to an intervener’s legitimacy. In short, the mindset of those intervening seems
far less important than these other qualities. To see this, consider the following
hypothetical example, which demonstrates the difference in importance between an
intervener’s effectiveness and its motivation. There is a humanitarian crisis in Burundi.
Zambia, for humanitarian reasons, wants to intervene, and has a reasonable expectation
of saving 10,000 lives. Tanzania wants to intervene in Burundi as well, but this time for
self-interested reasons (to stop border incursions) and has a reasonable expectation of
saving 10,001 lives. Who should intervene, Zambia or Tanzania? Assuming, for the sake
of example, that there are no further differences between the potential interveners, and
that the different motivations for intervening have no impact on how the intervention is
carried out, it seems clear that we ought to prefer Tanzania’s intervention because,
despite lacking a humanitarian motivation, one further life would be saved. Similar
arguments can be made to demonstrate the importance of other factors affecting the
legitimacy of an intervener, such as its representativeness and the means it uses. If we
have a choice between a representative yet self-interested intervener, and a less
representative but well-motivated intervener, we should prefer the former. Likewise, if
we face a choice between an intervener who uses humanitarian means yet undertakes
intervention for self-interested reasons, and an intervener who drops bombs
indiscriminately but whose leader has a humanitarian motive, we should, again, prefer the
former. My point, then, is that the value of an intervener’s having a humanitarian motive
19
is likely to be overshadowed by other, more morally important, factors affecting the
legitimacy of an intervener. By comparison, then, having a humanitarian motive is of
little intrinsic moral value.
In response, one could claim that, in practice, an intervener’s motivation is
instrumentally important since it affects these other normative qualities: an intervener
with a humanitarian motivation is much more likely to be effective, representative, and to
adopt humanitarian means. But on the basis of past evidence (e.g., India’s probably
selfishly motivated but generally successful intervention in Bangladesh and,
antithetically, the U.S.’s perhaps altruistic yet largely ineffective intervention in
Somalia), the motivation of the intervener (to the extent that we can ever determine what
this is) seems to have less of an effect than one might think.
Indeed, some even suggest that it is morally desirable that an intervener is not
purely motivated by humanitarian reasons. Their reasoning is that a strong element of
self-interest makes it more likely that the intervener will secure the necessary
commitment for effective humanitarian intervention (Stein 2004: 35). This claim does
have some plausibility. An intervener with a humanitarian motive alone is unlikely to
commit the resources required to prevent egregious human suffering beyond its borders.
An intervener needs a political motivation to undertake humanitarian intervention as well,
which means that it can justify its commitment in terms of the interests of its citizens
(ICISS 2001a: 36).
So, if ‘abusive humanitarian intervention’ is meant to denote humanitarian
intervention with a self-interested motivation (assuming that we can establish this), that
sort of intervention is not necessarily objectionable. There is little stock then in the
20
argument that an intervener’s legal status is morally significant because illegal
interveners are motivated by self-interest. Thus, the Trojan Horse Objection, which
claims that illegal humanitarian intervention is abusive itself, is unconvincing because if
(1) it takes ‘abusive’ intervention to be imperialistic intervention, this is not humanitarian
intervention, and if (2) it takes ‘abusive’ intervention to be self-interested, being abusive
is not that morally problematic.
(III) Future Abusive Intervention
Let us now consider the second claim often made about illegal humanitarian intervention
and abuse, which, like the next reason I consider, is instrumentalist. The allegation is that
illegal humanitarian intervention leads to abusive intervention. ‘Abusive’ intervention
here is meant to imply imperialistic or neo-colonial intervention, where the purpose of the
intervention is to gain territorial, economic, or strategic advantage, as discussed above in
the first version of the Trojan Horse Objection. This argument has become more popular
recently, with some theorists suggesting that the illegal intervention in Kosovo led to the
2003 war in Iraq (e.g., Wheeler 2005).
The objection has two parts: (1) illegal humanitarian intervention leads to
humanitarian reasons being regarded as more acceptable reasons for breaking the
prohibition on the use of force (perhaps, but not necessarily, in the form of a legal right to
undertake humanitarian intervention in international law); (2) if humanitarian reasons are
regarded as more acceptable reasons for breaking the prohibition on the use of force,
states will be more inclined to engage in abusive (nonhumanitarian) interventions.
21
Therefore, we should prefer legal to illegal interveners because they do not have the
negative effect of creating additional abusive interventions. It should be noted that the
argument is not that it is impossible to distinguish between genuine humanitarian
intervention and abusive intervention that is falsely claimed to be humanitarian; we can
distinguish between the two by looking at the intervener’s rhetoric, conduct during the
intervention, and track record of waging war for humanitarian reasons. Rather, it is that
by establishing humanitarian reasons as permissible reasons to breach Article 2(4) of the
UN Charter, unauthorised humanitarian intervention increases the opportunities for
abusive intervention because, in the future, other states will be able to cite humanitarian
reasons to justify their abusive actions.
However, the two parts of the causal relationship between illegal humanitarian
interveners and abusive intervention that underlie this argument are not strong. To start
with, although it is probably true that (1) illegal humanitarian intervention leads to
humanitarian reasons becoming more acceptable reasons to breach the prohibition on the
use of force, this is also true of legal humanitarian intervention. Indeed, the Security
Council-authorised interventions of the 1990s have already gone a long way towards
establishing the acceptability of humanitarian reasons for the use of force in the
international community.
The second part of the causal link (2) is also questionable. This objection to
illegal humanitarian intervention is similar to the argument given by some of those who
reject a new legal right to intervene: formally establishing humanitarian justifications as
permissible justifications for using force (in the form of a legal right) will lead to abusive
(nonhumanitarian) interventions (Brownlie 1973: 147-148; Chesterman 2001: 6). The
22
difficulty with this argument is that establishing humanitarian reasons as acceptable
reasons for using force is unlikely to provide many additional occasions for states to
engage in abusive interventions with the purpose of gaining territorial, material, or
strategic advantage. This is not to deny that states have used humanitarian justifications
mendaciously in the past. As Tom Farer (1973: 150) asserts, humanitarian justifications
were frequently invoked to justify armed interventions by Western states in the rest of the
world during the 19th and early 20th centuries (when there was a better case for the
existence a right of humanitarian intervention in international law), yet the majority of
these interventions were in defence of property interests rather than human rights. Nor is
it to deny that if humanitarian reasons became more acceptable reasons for breaking the
prohibition on the use of force, sometimes states would maliciously and mendaciously
invoke a humanitarian justification for their actions. Rather, my point is that, since states
already invoke self-defence as the justification for so many actions, increasing the
acceptability of humanitarian reasons for using force is unlikely to provide many new
opportunities for abuse. During the period in which humanitarian justifications for using
force were more accepted (in the 19th-century and early 20th-century), did states engage
in abusive (nonhumanitarian) interventions that they would not have otherwise engaged
in? In most cases, I doubt it. And while it might seem that there would be at least a few
more cases of abusive (nonhumanitarian) intervention as a consequence of further
establishing the permissibility of humanitarian reasons for using force, this has not been
borne out by recent state practice. Humanitarian reasons have become increasingly
acceptable (at least politically and perhaps legally too) reasons to violate the prohibition
on the use of force, but there has not been a corresponding increase in the number of
23
abusive interventions that mendaciously allege a humanitarian justification.18 Wars and
interventions in recent decades have instead relied on self-defence as the justification for
their action.19 As Mark Stein rightly asserts, the “idea that humanitarian interventions will
lead to nonhumanitarian wars has been somewhat overtaken by events” (2004: 37).
Furthermore, and again as Stein asserts, in the future, the U.S.’s recent interpretation of
‘anticipatory self-defence’ is far more likely to undermine the prohibition on the use of
force and lead to abusive intervention than “the possibility, feared by opponents of
unauthorized humanitarian intervention, that like cases will lead to unlike cases” (2004:
37).
What is more, even if the two claims (1) and (2) were true, the good achieved by
the original illegal humanitarian intervener could outweigh the harm done by subsequent
abusive intervention. Although abusive intervention may lead to oppression, domination,
and the violation of human rights, these negative, long-term effects could be balanced by
illegal humanitarian intervention’s positive, immediate effects of ending serious
violations of human rights, genocide, and ethnic cleansing. Furthermore, if it is true that
(1) illegal interveners establish the acceptability of humanitarian reasons as reasons for
breaching Article 2(4), then in addition to abusive interventions where humanitarian
justifications are claimed mendaciously, there may also be additional genuine
humanitarian interventions. These genuine humanitarian interventions could further
offset any harm done by abusive interventions. So, the worry that illegal humanitarian
intervention will lead to abusive nonhumanitarian intervention is largely misplaced.
24
(IV) International Order
Some, however, question the ability of humanitarian intervention to do more good than
harm (e.g., Brownlie 1973: 146). Their argument, which is instrumentalist, is that illegal
humanitarian intervention undermines international order. Kofi Annan, for instance,
argues that “actions without Security Council authorization threaten the very core of the
international security system founded on the Charter of the United Nations” (in Wheeler
2000: 294).
We have just encountered and rejected one version of this argument, that illegal
humanitarian intervention leads to additional abusive interventions, and therefore
undermines international order. Chandler (2002: 157-191) offers a more general
argument. He argues that by circumventing the international legal system, an illegal
humanitarian intervener reintroduces chaos into international affairs and fundamentally
challenges the pre-existing structures of international order, thereby pushing us towards a
Hobbesian international system. This is because it leaves the judgment to the individual
state, rather than deferring to the UN, and therefore removes consensus and certainty
from international law.
This massively over-exaggerates the potential destabilising effects of illegal
humanitarian intervention on international order. As Buchanan (2003: 147-148) argues,
international law is not a seamless web: cutting one thread – violating one norm such as
the law on humanitarian intervention – would not destroy the whole fabric and send us
towards chaos. Indeed, the experience of illegal humanitarian intervention does not
suggest that it destabilises the international legal system. On the contrary, illegal
25
humanitarian intervention is often condoned by the international community, as in the
cases of Tanzania’s intervention in Uganda and (to a certain extent) NATO’s intervention
in Kosovo (Wheeler 2000).
That said, there might be a better argument relating to international order for the
importance of an intervener’s legal status. This argument appeals to the positive effects of
legal interveners (instead of the negative effects of illegal interveners) for international
order, and runs as follows. Since legal interveners require UN Security Council
authorisation in order to be legal according to current international law, when legal
interveners act, it means that the Security Council is behaving as an effective system of
international governance – it is fulfilling its purposes of governing and authorising the
use of force. And although the functioning of the Security Council is procedurally
problematic (for the reasons outlined above), in terms of the substantive question of
international order, an effectively functioning Security Council is likely to be beneficial
because it will strengthen the rule of law and the stability of the international system by
centralising decision-making on the use of force. As such, legal interveners are preferable
to illegal ones, not because illegal interveners have disastrous effects on international
order, but because legal interveners have a greater positive effect on international order.
It is important, however, not to overstate the force of this argument. It is highly
speculative and cannot be easily verified. Even if it were accurate, it does not provide a
strong reason for disfavouring illegal humanitarian intervention, but only a reason for
favouring legal humanitarian intervention. Furthermore, the positive effects of a UN
Security Council-authorised intervention on the international system and on international
order would probably be insignificant, at least in a grand scale of things. Consequently,
26
that the UN Security Council authorises a particular humanitarian intervention is unlikely
to have an immediate, significant, and positive effect on overall international law and
order.
Conclusion
My suggestion, then, is that a humanitarian intervener’s legal status according to current
international law is of little moral importance, significantly less than commonly assumed.
It is neither a necessary condition of, nor a morally significant factor in, an intervener’s
moral justifiability. All we can say is that an intervener with UN Security Council
authorisation is mildly preferable to an intervener without such authorisation because it
could perhaps have some positive effects on international order. But this reason does no
more than establish the minor moral worth of an intervener’s legality.
This is not to say that the Security Council, in general, has no moral value. On the
contrary, for uses of force apart from humanitarian intervention (such as the 2003 war in
Iraq and other security-related uses of force), it is probably morally desirable, for
instrumental reasons at least, that the Council authorises the action. However, in cases of
humanitarian intervention, if an intervener responds to a grave humanitarian crisis but is
unable to achieve UN Security Council approval, perhaps due to the self-interested
actions of the permanent five, it would be wrong to reject its action merely because it is
illegal. Hence, Security Council authorisation should not to be considered a critical
warrant for action. Similarly, if we face a choice between an ineffective but legal UN
action, and a justifiable yet illegal humanitarian intervention by another agent, we should
27
prefer the latter, other things being equal.
So, contra ICISS, when deciding who should intervene, an intervener’s legal
status according to the current international law on humanitarian intervention should play
only a small role in our thinking. This is also true of an intervener’s motives, which, as
argued in this article, have neither intrinsic nor instrumental moral significance. We will
need instead to look to other factors, such as the intervener’s effectiveness,
representativeness, and use of means to specify who should execute the responsibility to
protect.
It follows then that there is too great a gap between the current international law
on humanitarian intervention and the demands of morality: lex lata bears little relation to
lex ferenda. If an intervener’s legal status is to be a suitable candidate for determining
who should execute responsibility to protect, we will need to reform the current
international law on humanitarian intervention, so that an intervener’s legal status has
greater moral significance.
But, given my arguments above, why should we want to an intervener’s legal
status to matter more? Recall here that the very limited significance I give to law relates
primarily to international law and arrangements in their current form, not to international
law as such (although there is, of course, some overlap). Therefore, international law and
international legal institutions could be reformed such that we should give them greater
moral significance. Indeed, a strong case can be made for the necessity of such reform.
States and other international institutions have been reluctant to take on the responsibility
to protect and the current international law exacerbates this situation. Interveners without
express UN Security Council authorisation are widely regarded as illegal and this
28
discourages agents that are unlikely to win UN Security Council approval from
undertaking what could otherwise be justifiable humanitarian intervention. In addition,
states use the difficulty of achieving UN Security Council authorisation as an excuse to
avoid intervening. As such, reforming the current international law could potentially
remove a barrier to the fulfilment of the responsibility to protect.
This reform is perhaps not best achieved by changes in customary international
law; the problem with this approach is that it leaves too much to fortune.20 Nor should
reform simply be a matter of legalising all unauthorised humanitarian interveners or
legalising all unauthorised humanitarian interveners that meet certain criteria. A more
realistic, and desirable, solution is an approach that would develop additional formal
bases for authorising humanitarian intervention in certain regional organisations, such as
the African Union, ECOWAS, and the EU, which would supplement the powers of the
Security Council. Additional treaty-based law would be created to give these
organisations not only the legal authority to authorise and to undertake humanitarian
intervention within their regions, but also the legal responsibility and duty to do so. This
more integrated response would start to tackle the problems of a lack of state willingness
and commitment to take on the responsibility to protect, as well as some of the legal
issues raised in this article. And although this solution would not be ideal, it would be a
lot better than the morally deficient international law on humanitarian intervention we
have at the moment.
Acknowledgements
29
I would like to thank Peter Jones, Simon Caney, Thom Brooks, the members of the
Newcastle University Political Philosophy Group, and two anonymous referees for their
comments on earlier drafts of this article.
1
See Bellamy (2006) for a detailed account of how this agreement was reached (and
watered down from the original concept).
2
Although there have been interventions in Darfur and the Democratic Republic of Congo
by the African Union and the UN respectively, both missions, despite some success, have
been unable to halt the egregious violations of human rights.
3
See UN (2005: 30). A weaker version of this position is taken by ICISS (2001a). They
hold that proper legal authorisation is a highly significant factor in an intervener’s moral
justifiability: we should look primarily to an intervener’s legal status to decide who
should execute the responsibility to protect. Although this leaves open the possibility that
illegal humanitarian intervention could be justified in exceptional cases, it is generally
regarded as morally unacceptable.
4
For the purposes of this article, I define humanitarian intervention as “forcible military
action by an external agent in the relevant political community with the predominant
purpose of preventing, reducing, or halting an ongoing or impending grievous suffering
or loss of life.” Note that the 2003 war on Iraq was not a ‘humanitarian intervention’
according to this definition, for its primary purpose was not humanitarian (see Roth
2004). For a thoughtful and interesting (if ultimately unsuccessful) argument to the
contrary, see Fernando Tesón (2005).
5
See below for a statement of the requirements of opinio juris.
30
6
‘Unilateral’ is sometimes used by international lawyers to refer to action by any number
of states that lack UN Security Council authorisation. This usage is confusing. I will use
‘unilateral’ to refer to an intervention carried out by one state on its own and
‘unauthorised’ to refer to an intervention that lacks Security Council authorisation.
7
In fact, there are two additional (but less significant) exceptions to the prohibition on the
use of force. The first is when the target state expressly agrees to the intervention. The
second is intervention undertaken by the African Union. Article 4 (h) of the Charter of
the African Union permits it to intervene in grave circumstances (war crimes, genocide,
and crimes against humanity) in countries who have signed up to the treaty.
8
The International Court of Justice (ICJ) has ruled that claims of self-defence can be
made only in response to ‘an armed attack’ (ICISS 2001b: 160).
9
This reading of the law on humanitarian intervention is disputed by some legal
positivists who regard it as too broad (e.g., Joffe 1994). Their argument is that the
Security Council is restricted by the UN Charter, which, in Article 2 (7) claims that the
UN cannot intervene “in matters which are essentially within the domestic jurisdiction of
the state”. And, although Chapter VII measures concerning ‘international threats to peace
and security’ are excluded from this article, the argument runs, humanitarian intervention
rarely constitutes an international threat to peace and security. As such, the Security
Council has no legal basis to authorise humanitarian intervention. What this overlooks,
however, is that according to Article 39 of the Charter, it is the Security Council that
determines what constitutes an ‘international threat to peace and security’. Since the early
1990s, the Council on occasion has broadened its interpretation of a threat to international
peace and security to include intra-state war and internal oppression, and has been willing
31
to authorise humanitarian intervention in such cases.
10
These require the intervener: (1) to have a humanitarian purpose and to adopt
humanitarian means, (2) to use force effectively and only when necessary, (3) to be
welcomed by the victims of the oppression, and (4) to be internally legitimate (Tesón
1997: 121-128; 1998: 59).
11
See Caney (2005: 236) on the problems of the domestic analogy.
12
See, for instance, DUPI (1999: 123).
13
See Buchanan (2004) for further criticisms of legal proceduralism.
14
It is worth noting that in practice interveners tend not to have pure humanitarian
intentions or motives; they have – to varying degrees – a combination of humanitarian,
security, economic, and political intentions and a mix of altruistic and self-interested
motives. As Michael Walzer argues, there are “only mixed cases where the humanitarian
motive is one among several. States don’t send their soldiers into other states, it seems,
only in order to save lives” (1992: 101-102).
15
Tesón (2005) also makes this distinction between an intervener’s intention and its
motive.
16
Its underlying motives for resolving the crisis might still be self-interested though – for
instance, the leader of the intervener might wish to stop a humanitarian crisis because this
would be popular with voters.
17
This assertion is well supported by the literature: Ellery Stowell says that humanitarian
intervention is the “reliance upon force for the justifiable purpose of protecting the
inhabitants of another state”; Ian Brownlie states that humanitarian intervention has “the
object of protecting human rights”; and Adam Roberts says that humanitarian
32
intervention has “the purpose of preventing widespread suffering or death among the
inhabitants” (in Chesterman 2001: 1-3; emphases added).
18
See, further, Tesón (2003: 113).
19
Self-defence was the main reason given for the following uses of force: the U.S. in
Nicaragua; Portugal’s conflicts with Guinea, Senegal, and Zambia; South Africa in
Namibia, Angola, Botswana, Mozambique, and Zambia; Israel in Lebanon; Thailand in
Burma; Senegal in Guinea-Bissau, Tajikistan in Afghanistan; and Iran in Iraq (Gray
2000). Self-defence was also the main reason given by the U.S. and the U.K. for the 2003
war on Iraq (their attempts to justify the war for humanitarian reasons were always
secondary to the main argument of self-defence).
20
See Buchanan (2003) for a detailed discussion of this sort of reform.
33
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